UNIVERSITY OF

LUSAKA
Unit 5 – Co - Ownership – Concurrent Interests In Land
Introduction
• Ownership of land may be vested in a single person or in two or more
persons. Concurrent Co-ownership of property describes the
simultaneous enjoyment of land by two or more persons.
• The law of Co-ownership operates whenever two or more people
enjoy the rights of ownership of property or land at the same time.
• The Co-owners may be husband and wife, siblings, business partners
or friends.
Introduction Cont’d
• There were four forms of co-ownership in land at common law. These
are:
1. joint tenancy;
2. tenancy in common;
3. tenancy by entireties; and
4. Coparcenary.
• Most forms of co-ownership are created voluntarily or by
someone else.
Joint Tenancy
• Joint tenancy exists when two or more people have concurrent title to
property.
• each co-owner is treated as being entitled to the whole of that land;
there are no distinct ‘shares’ and no single owner can claim any
greater rights over any part of the land than another.
• Although as between themselves joint tenants have separate rights,
against everyone else they are in a position of a single owner
• The two principle features of a joint tenancy are the right of
survivorship and the four unties
Joint tenancy Cont’d
• The right of survivorship or jus accrescendi
o By virtue of this principle, if one joint owner dies during the
existence of the joint tenancy i.e. before it has been severed their
interest in the joint tenancy automatically passes to the remaining
joint tenancy and the remainder continues to enjoy their rights
over the land as a single owner.
o The right of survivorship takes precedence over any attempted
transfer of the property by will; a will has no effect on this type of
tenancy.
Joint tenancy Cont’d
• The four unties
o Before a joint tenancy can exist, the four unities must be present
and it is the presence or absence of these factors that enable us to
distinguish a joint tenancy from a tenancy in common.
o The four unities are:
 Unity of possession interest; title; and time.
Joint tenancy Cont’d
1) Unity of time
o As is implied by the name, this element requires that each joint
tenant take his or her share at the exact same time. For example:
 Peter has two sons, John and James. Peter conveys a one-half
interest in his apartment to John. A month later, he conveys his
remaining one-half interest in his apartment to James. Even if
Peter intended that John and James be joint tenants, this is not
possible because they received title to the apartment at
different times.
 Instead, John and James share a tenancy-in-common in the
apartment.
Joint tenancy Cont’d
2) Unity of Title
o This unity requires that all joint tenants acquire title by the same
instrument. This can be a deed, a will, a trust or any other
document that can convey property. For example:
 The Mary gives a deed to Hazel, giving her a one-half interest in
her House, but it is only effective at the time of her death. In
her will, the Mary leaves the other one-half interest in the
House to Songi, and she specifically writes that Songi should be
a joint tenant with Hazel.
 Hazel and Songi are only tenants-in-common with each other.
Since they did not take title via the same instrument.
Joint tenancy Cont’d
3) Unity of Interest
o This unity requires that each tenant must have an equal interest in
the property. This means that each co-tenant must have the exact
same interest as all of the others in terms of physical ownership
(each must own an identical percentage of the interest in the
property) and chronological ownership (each must have an
identical estate). For example:
 The Mr. Daka conveys his land, 40% to Hensel and 60% to Gretel “as
joint tenants with rights of survivorship.”
 This language is ineffective. Since Hensel and Gretel are not each
given the same percentage of the land, they cannot be joint tenants.
 Instead, they will take the land as tenants-in-common in the
proportions set out by Mr. Daka.
Joint tenancy Cont’d
• Second example:
o The Mr. Daka conveys his land, One half to Hensel and his heirs
and one half to Gretel for life".
o Since Hensel and Gretel do not have equal estates (Hensel has a
fee simple absolute in his share, but Gretel has only a life estate in
hers), they cannot be joint tenants in the House.
o Once again, they are tenants-in-common.
Joint tenancy Cont’d
4) Unity of Possession
o This requires that each joint tenant have the right to possess the
entire property.
o Note that, in this respect, the joint tenancy is similar to the
tenancy-in-common.
o The difference is that with the tenancy-in-common, equal right to
possession was presumed, but could be overcome by clear intent
of the parties.
o There may be no physical division of the land and no restriction on
any joint tenant’s use of each and every part of the land and this
includes the right to participate fully in the fruit of possession,
such as receipt of rents and profits derived from the land .
Joint tenancy Cont’d
• With a joint tenancy, equal right of possession is a necessary element.
For example:
o The Mr. Daka conveys his House to Peter and John in equal shares
as joint tenants with rights of survivorship, but provides that Peter
shall not have the right to live in the House from June through
September because he is afraid that the house gets extremely cold
and Peter, being asthmatic might experience health problems by
virtue of living in the house. Peter and John will take the House as
tenants-in-common.
Joint tenancy Cont’d
• A joint tenant has the right to convey his or her interest in the
property to anyone he or she wants to.
• However, once this is done, the joint tenancy is destroyed with
respect to the share of the property that has been transferred.
• This is because the transfer breaks up the unities of time and title as it
creates an interest in the new recipient who received his or her
interest later and with a different instrument than did the original
joint tenants.
• If the instrument which purports to create a joint tenancy is
ambiguous, that could lead to the Court reading into it as a tenancy in
common
Tenancy in Common
• When two or more people own land under a tenancy in common it is
often said that they have undivided share in land.
• In other words a tenant in common can point to precise share of
ownership of the land e.g. one half, one fifth, own quarter etc.,
although the land at present is undivided and treated as a single unit.
• The distinctive feature of the tenancy in common is then, that each
co-owner has a distinct and quantified share in the land.
Tenancy in Common Cont’d
• As the parties hold ‘shares’, they are free to dispose of their part
whenever they wish to.
• Furthermore, there is no right of survivorship as the size of each
party’s share is fixed and remains unaffected upon the death of a co-
owner, instead the share of the deceased is passed on under a will or
their intestacy.
• This may explain why a tenancy in common may be preferred were
the co-owners are not closely connected by family ties.
Tenancy in Common Cont’d
• To summarise, under a tenancy-in common;
1. There is an undivided share in land,
2. There is unity of possession;
3. No other unities need be present;
4. There is no right of survivorship; a tenant’s share maybe passed
on in the normal way by will on death or through the rules of
intestacy; a transfer of interests does not terminate the tenancy
in common.
Tenancy by Entireties and Coparcenary
• Coparcenary and tenancy by entities are old forms of co-ownership
• Coparcenary
o Coparcenary as a form of Co-Ownership arose by operation of law on
the death of the holder of unbarred fee tail leaving daughters and no
issue through the male line.
o the daughters would own and hold the land as Coparceners.
o It resembled a tenancy in common in that there was no right of
survivorship and further in that the interest of Coparceners could be of
different sizes. It differed from a Joint Tenancy in that it arose only by
operation of law (inheritance) whereas a joint tenancy can arise
through purchase of land.
Tenancy by Entireties and Coparcenary
Cont’d
• A tenancy by entireties arose where land was conveyed to a husband
and wife in a way that would otherwise have created a joint tenancy.
• It resembled a joint tenancy in that there was a right of survivorship.
• It was distinguishable from a joint tenancy in that either spouse could
alienate his or her interest without the agreement of the other.
• By the provisions of sections 1 and 5 of the Married Women’s
Property Act of 1882, no new tenancy by entireties was capable of
being created after the said year.
Termination of Co-ownership
• A joint tenancy may be terminated through conversion into sole
ownership, severance or partition.
o Conversion into sole ownership means that, by virtue of the doctrine of
survivor-ship when one or more of the joint tenants die, the survivor
becomes the sole owner of the property.
o Severance occurs when a joint tenancy is converted into a tenancy in
common; For example, where one of the two co-owners transfers his or her
interest in the co-owned property to another, or when the parties mutually
agree to sever their interest.
o Partition - the co-owners owners may apply to court to have the land divided.
• A tenancy in common can be terminated through partition
Further Reading
• Read:
o s. 51 of the the Lands and Deeds Registry Act

o Chishala Karabasis and another v Mwale (2018) ZMSC 321 -if not expressly
stated, co- ownership is treated as a joint tenancy
o Balvant Popatal Potal V. Amrat Bhaga – SCZ Appeal No. 104 of 1999

o Popatal v Gauff And Another – 2002/HPC/0486- HC

o Anne Scott v Oliver Scott (SCZ Judgment Number 3 OF 2007)

o Krige and Another v Christian Council of Zambia (1975) ZR 152 (SC)